93 Decision Citation: BVA 93-09174
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-01 219 ) DATE
(RECONSIDERATION) )
)
)
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for residuals of
tonsillectomy.
3. Entitlement to service connection for a chronic
respiratory disease.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
C. R. Olson, Counsel
INTRODUCTION
The veteran's active military service extended from February
1956 to April 1960.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from August 1989 and subsequent rating
decisions from the Albuquerque, New Mexico, Regional Office
(RO) of the Department of Veterans Affairs (VA). The August
1989 rating decision denied service connection for residuals
of tonsillectomy and a chronic respiratory disease. The
notice of disagreement was received in September 1989. An
October 1989 rating decision denied service connection for
bilateral hearing loss. The statement of the case on the
tonsillectomy and respiratory disease issues was promulgated
in October 1989. The notice of disagreement with the
hearing loss decision was received in November 1989. A
supplemental statement of the case, including the hearing
loss issue, was promulgated in November 1989. The
substantive appeal was received in January 1990. The appeal
was received at the Board in February 1990 and docketed in
March 1990. The Veterans of Foreign Wars of the United
States has acted as the veteran's representative throughout
his appeal. The case was referred to that organization and
it presented written argument to the Board in July 1990.
By a September 1990 decision, the Board denied service
connection for bilateral hearing loss, residuals of
tonsillectomy, and a chronic respiratory disease.
In October 1990, the representative requested that the
Board's September 1990 decision be reconsidered. The case
was received at the Board in January 1991 and docketed in
March 1991. The Board ordered reconsideration in April
1991. An enlarged panel of two sections of the Board has
been convened for the purpose of the reconsideration. The
veteran's representative, the Veterans of Foreign Wars of
the United States made another written presentation to the
Board in May 1991.
In September 1991, the Board remanded the case to the RO to
obtain private and military treatment records. The RO
contacted health care providers listed by the veteran but
only one physician was able to provide records. The service
medical records were obtained. In April 1992, the RO
reviewed the newly obtained evidence, made a rating decision
which continued to deny the claims, and issued a
supplemental statement of the case. The veteran's response
was received in May 1992. Following receipt of additional
private hospital records, the RO reviewed the record,
continued the denial and, in August 1992, issued another
supplemental statement of the case. The appeal was received
at the Board in November 1992 and docketed in December 1992.
The Veterans of Foreign Wars of the United States again
presented written argument to the Board in January 1992.
As noted above, this reconsideration will be by an enlarged
panel of two sections of the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the Board committed error in not
granting service connection for bilateral hearing loss,
residuals of tonsillectomy, or a chronic respiratory
disease. He particularly contends that he has a hearing
loss as a result of being slapped in the head during
training and as a result of being near firing guns. The
representative requests a current audiometric examination.
It is averred that the veteran's tonsils were removed during
service. He reports that his respiratory problems began
during service and have continued since then, with private
and VA treatment. He feels that the respiratory disorder
may be the result of exposure to smoke and garbage while
serving in Beirut, Lebanon. The representative requests a
current pulmonary examination.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file,
and for the reasons and bases herein set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim for service connection for bilateral
hearing loss; however, the evidence supports a grant of
service connection for residuals of tonsillectomy and for a
chronic respiratory disease.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. Ear trouble during service completely resolved without
any hearing loss.
3. Any hearing loss the veteran may now have is not the
result of disease or acoustic trauma during service.
4. The veteran has current residuals as a result of a
tonsillectomy during service.
5. The veteran's current chronic respiratory disease had
its inception in service.
CONCLUSION OF LAW
1. A bilateral hearing loss was not incurred in or
aggravated by the veteran's active military service.
38 U.S.C.A. §§ 1131, 5107 (West 1991).
2. Residuals of tonsillectomy were incurred in active
military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991).
3. A chronic respiratory disease was incurred in active
military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Reconsideration having been ordered, the expanded panel of
the Board has reviewed the record under the same standard
employed by the section which conducted the initial review,
i.e., a de novo review. Boyer v. Derwinski, 1 Vet.App. 531,
535 (1991).
We find the veteran's claim to be "well grounded" within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we
find that he has presented a claim which is plausible. We
are also satisfied that all relevant facts have been
properly developed. No further assistance is required to
comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107(a). Sanders v. Derwinski, 1 Vet.App. 88 (1990);
Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v.
Derwinski, 1 Vet.App. 90 (1990); and Seavey v. Derwinski,
2 Vet.App. 262 (1992).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by
peacetime service. 38 U.S.C.A. § 1131 (West 1991).
When, after consideration of all evidence and material of
record, there is an approximate balance of positive and
negative evidence, the benefit of the doubt in resolving
each issue shall be given to the veteran. 38 U.S.C.A.
§ 5107(b) (West 1991).
I. Bilateral Hearing Loss
When the veteran was examined for service, in February 1956,
an audiometric examination was not done; however spoken and
whispered voice tests had normal results.
He has contended, in part, that he has a hearing loss as a
result of being slapped in the head during training and as a
result of being near firing naval guns. The service records
do not document the alleged injuries or show any hearing
loss which might have resulted from such injuries.
An August 1959 service medical record shows that the veteran
complained that he was unable to hear in the right ear.
Examination disclosed a dull ear drum. In September 1959,
there were complaints of right ear pain and hearing loss for
the previous month. Examination revealed bulging and
discoloration of the right ear drum. A provisional
diagnosis of chronic otitis media was made. There were no
medical findings indicating chronicity. 38 C.F.R. 3.303(b)
(1992).
There is no record of further ear or hearing complaints or
findings during service, despite treatment for other
conditions.
In April 1960, when the veteran was examined for release
from active service, spoken and whispered voice tests had
the same normal results as had been found when he was
examined for service, in February 1956, and audiometric
examination results were also well within normal limits.
Clinical examination showed the ears to be normal. These
examination findings on separation examination were made by
medical personnel and are sufficiently detailed,
particularly the audiometric examination, to convince us
that any ear trouble during service had completely resolved
without any residual hearing loss.
Post service medical records show treatment over the years
for various disorders; however, they do not show a hearing
loss or ear disorder. As recently as a hospital emergency
care admission in December 1988 (for cold symptoms),
examination showed the tympanic membranes (ear drums) to be
normal.
The representative has asked for an audiometric examination.
Even if such an examination disclosed a current hearing
loss, there is no reasonable basis to conclude that such
current hearing loss is the result of disease or injury
during service, in light of the evidence now of record. The
preponderance of evidence convinces us that the ear trouble
the veteran had in service was transitory, resolved without
residual disability, and did not result in any hearing loss
the veteran may now have.
II. Residuals of Tonsillectomy
Service medical records show that the veteran had recurrent
episodes of tonsillitis. In January 1958, there was found
to be hypertrophy of the tonsils with an exudate. That
month, a tonsillectomy was performed. Service connection
can only be granted for disabilities, 38 U.S.C.A. § 1131,
and there is some question as to whether the absence of
tonsils represents a disability. We resolve this issue by
giving the veteran the benefit of the doubt. 38 U.S.C.A.
§ 5107(b). Without preempting the RO determination as to
the degree of disability, we find that the absence of the
veteran's tonsils is a disability for which service
connection may be granted, and we do so.
III. Chronic Respiratory Disease
In November 1959, the veteran complained of chest pain,
coughing for 3 weeks, and spitting up blood for the past
week. Examination revealed wheezes on inspiration, in the
left apex and base. On separation examination, in April
1960, abnormal, musical rales were heard at both lung bases.
The respiratory abnormalities noted during service and on
separation examination may or may not have continued. The
veteran reports continuing respiratory distress, although
there is no medical documentation of respiratory symptoms
for over 10 years after the veteran left service. The
earliest medical documentation of respiratory disease is
found in the notes of the veteran's private physician, A. A.
Manson, M.D. In May 1971, Dr. Manson noted that the veteran
was "still coughing." This comment may reflect that
previous symptomatology had been noted by the physician.
Inspiratory wheezing and a few rales were heard in the
veteran's chest. Subsequent private and VA medical records
show frequent respiratory symptoms, primarily wheezing and
coughing. The respiratory disease was variously diagnosed
as bronchitis, bronchial asthma, and asthma.
The respiratory symptoms during service do not appear to
have been very severe and there is no medical documentation
showing a continuance in the 10 ten years immediately
following service. On the other hand, the record does not
show that the symptoms in service resolved and the symptoms
during service are similar to the post service symptoms. As
the evidence is in relative equipoise, we give the veteran
the benefit of the doubt. We conclude that the unresolved
wheezing during service cannot reasonably be dissociated
from the frequently noted post-service wheezing; and that
the veteran's current respiratory disorder is the result of
disease during his active military service.
The pulmonary examination requested by the representative
may provide additional information as to the nature and
extent of the veteran's respiratory disease, but it is not
now needed to reach a favorable determination on the issue
of entitlement to service connection for a chronic
respiratory disease.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for residuals of tonsillectomy and a
chronic respiratory disease is granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
W.H. YEAGER, JR., M.D. JAN DONSBACH
JOAQUIN AGUAYO-PERELES
L. W. TOBIN J.F. GOUGH
JACK W. BLASINGAME
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.